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Saturday, June 25, 2011

Current Vietnam Vets Case

Vietnam Vets’ v. CIA, + noncons. cases
December 17, 2010

By ECF and Hand Delivery

Magistrate Judge James Larson
U.S. District Court for the Northern District
Courtroom F, 15th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

Vietnam Veterans of America v. Central Intelligence Agency, No. C-09-00037 CW

Dear Judge Larson:
Pursuant to this Court’s Orders of November 12, 2010 and December 2, 2010,

Defendants have advised us that they will soon file a supplemental declaration in an attempt to justify their assertion of privilege under 50 U.S.C. § 403g. all substantive questions, including inquiries into the foundation for a claim of privilege, into the involvement of the CIA, a named defendant, in this case. Such an overbroad use of t 403g privilege will seriously undermine Plaintiffs’ right to discovery in this action.performed various assignments in connection with the CIA’s Project MKULTRA, such as experiments on prisoners at the Addiction Research Center in Lexington Kentucky and the Atlanta Federal Penitentiary. Defendants instructed Dr. Pelikan not to answer foundational questions about whether he had any connection to the CIA. Further, they instructed him not 1 In evaluating this privilege

claim, the Court should be aware that Defendants are now invoking section 403g to foreclose
For example, on December 10, 2010, during Plaintiffs’ deposition of a third party, Dr. Edward W. Pelikan, who is employed at the Boston University School of Medicine,

Defendants instructed the witness not to answer on over 130 occasions on the grounds that the information was protected pursuant to 403g or other statutory privileges.

2 Plaintiffs have reason to believe that Dr. Pelikan, a former employee of the Office of Naval Research,

1 Section 403g states that “the [Central Intelligence] Agency shall be exempted from . . . the provisionsof any other law which require the publication or disclosure of the organization, functions, names, official titles,

salaries, or numbers of personnel employed by the Agency. . . .”

2 A rough transcript of Dr. Pelikan’s deposition is attached to this letter. A final transcript of thedeposition is not yet available. The deposition was taken in Lexington, Massachusetts and lasted approximately 3.5 hours.
Case4:09-cv-00037-CW Document190 Filed12/17/10 Page1 of 2

Magistrate Judge James Larson
December 17, 2010
Page Two


connections to the CIA and concerning whether information he might have obtained from the CIA was, in fact, classified. For example, Defendants instructed Dr. Pelikan not to answer the following questions:

humans?” (
“Did you ever talk with anyone outside of government about any work you mightId. at 27:7-27:9.)“Have you ever heard of Project MKULTRA?” (Id. at 49:2.)“Have you ever heard of a Ray Treichler?” (Id. at 52:14.)

“Have you ever received any funding in connection with the Atlanta [F]ederalId. at 53:6-53:7)“Have you ever worked with a Dr. Harold Abramson?” (Id. at 63:8-63:9.)

and to foreclose even the most basic inquiries into the CIA’s widely known involvement in human experimentation. Plaintiffs ask the court to take Defendants’ recent, overbroad privilege claims into account when evaluating their 403g declaration .

• Did you ever work for the CIA? (Pelikan Deposition Transcript at 26:2)“[D]id you receive any payments from any sources other than the Naval Reserve?” “During the period that you worked for the Office of Naval Research, were you ever

CIA has decided to assert section 403g as a basis for wholesale exemption from discovery


Gordon P. Erspamer

to answer questions concerning information he may have obtained independent of his
• Id. at 16:16-16:17.)
• involved in any tests which involved the administration of these substances to Id. at 23:11-12:14.)
• have conducted in connection with the CIA?”(

[P]enitentiary?” (

It has become clear that, in response to your order that the CIA furnish discovery, the
cc: All counsel of Record ( by ECF)